D – 30179 Hannover
Phone +49 (0)511 – 96 99 7 – 0
Fax +49 (0)511 – 67 37 94
USt-IdNr.: DE 115648828
Managing Director: Jürgen Freitag
HRB: 52 497
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Kling & Freitag web sites contain links to other web sites operated by third parties. Kling & Freitag strives to carefully select such web sites, however Kling & Freitag does not accept any liability for any content stored on such web sites nor does Kling & Freitag accept any liability for such third parties to comply with applicable data protection laws. All information on our Internet websites has been carefully checked by Kling & Freitag or our partners. Kling & Freitag and third parties involved cannot, however, guarantee that it is correct, complete or up to date.
(Updated: August 2010)
1.1 For all transactions with the ordering party the following conditions shall apply exclusively. Other conditions shall be applicable only in so far as we have expressly agreed to these. Deviations via individual agreements must be in writing.
1.2 Our offers are an invitation for contract negotiations and not a binding offer. The offer documents shall remain our property; the ordering party herewith waives any right to lien or to withhold these documents. Contracts for supply of goods shall be deemed adopted by either our written order confirmation or by our delivery. All additional verbal or supplementary agreement shall require a written confirmation to become valid. A no reply to requests for changes or supplements shall be considered a refusal.
2. Sales Prices
2.1 We reserve the right to increase the sales prices prior to the completion of the delivery corresponding to a subsequent increase in wages or costs for materials prior to the completion of the delivery if there are more than six weeks between the time of the completion and the agreed upon delivery date.
2.2 Applicable prices shall be those that are stated in our order confirmation excluding VAT ex works warehouse Hanover (Incoterms 2000). At the request of the ordering party the goods may be forwarded but we will choose the way of transport and the carrier. Costs for transport and transport insurance shall be borne by the ordering party; the packing material remains its property.
3. Product conformity, modifications in Construction and Design
3.1 Relevant for the contractual agreed conformity of goods are only the specifications provided by the order confirmation or the offer; the conformity with the buyer´s intended use is part of the contractual agreed conformity of goods solely in case of an explicit agreement between the Parties.
3.2 It is agreed that the product quality may differ from the quality stipulated by prospects or similar descriptions if this difference results from usual quality divergences of the material or the use of the product within an individual framework of technical parameters.
3.3 The advice regarding technical subjects on customer request and all information given to the ordering party are not part of the contractual obligations. The technical advice and information is a service free of charge.
3.4 The contractual agreed product conformity is based on the relevant legal regulations and technical standards in the European Union. The ordering party shall remain responsible for the conformity with other legal regulations and standards. Instructions and manuals are only served in English.
3.5 Modifications regarding the construction or the design which can be attributed to improvements in technology or modified design requirements stipulated within the applicable law shall remain reserved if these modifications of goods may be acceptable to the ordering party.
4.1 Delivery dates and deadlines stated by us shall not be binding unless otherwise agreed upon in writing. We are not answerable for delays in delivery or service due to acts of God and / or due to events which render the delivery considerably difficult or impossible e.g. if we would not be delivered by third parties in due time with material and would not be in the position to replace it. Aforesaid reasons shall entitle us to postpone the delivery or the service corresponding to the time of the hindrance, to an additional time for re-starting or to withdraw from the contract completely or in parts.
4.2 The compensation for damages resulting from the delivery default is limit up to the amount of 1/2% for each completed week of delay but not exceeding 5% of the invoiced amount for the deliveries or services in question.
4.3 We are entitled to perform part-deliveries or part-services at any time, if this delivery is not unacceptable for the ordering party.
5. Acceptance and Passing of Risk
5.1 The ordering party is obliged to inspect and to accept the delivered goods immediately after receipt at the place of delivery except the ordering party is temporarily prevented from accepting or inspection through no fault of his own.
5.2 Should the ordering party default in accepting the goods for more than 14 days from the receipt of the notice of availability we shall be entitled to withdraw from the contract and to claim damages for non-fulfilment, following the granting of an additional time for acceptance of a further 14 days. The granting of an additional period for acceptance shall not be required if the ordering party definitely or finally refuses the acceptance or appears not to be in a position to pay within the said time-limit.
5.3 The risk of accidental loss or accidental impairment of the goods passes to the ordering party at the time that the goods are prepared for delivery.
6. Reservation of Title and Safeguarding of Claims
6.1 The delivered goods remain our property until receipt of full payment. The ordering party is entitled to resell the goods during the ordinary course of business and assigns herewith all claims to us which may arise from the resale up to 120 % of the agreed sales price (including VAT) between us and the ordering party. We accept this assignment.
6.2 The ordering party shall be entitled to collect the debts which shall remain unaffected to our rights. However, we undertake not to collect the debts as long as the ordering party fulfils its payment obligations. In case of late payment the ordering party has to disclose the assigned claims and their debtor, to serve to our hands all necessary details, to hand over the relevant documents and to inform the debtors (third parties) about the assignment.
6.3 The ordering party shall neither pledge nor transfer the delivered goods as security. In cases of execution levies, confiscation or other orders by third parties the ordering party is obliged to inform us immediately of such matters and to make available all documents which are necessary to preserve our rights. Bailiffs and third parties respectively shall be informed of our ownership.
6.4 If the relevant imperative provisions of law may not allow the retention of ownership according to 6.1-6.3 the parties agree herewith to perform a reservation of title according to the imperative provisions of law.
6.5 The enforcement of the reservation of title does not constitute a withdrawal from the contract.
7.1 The invoice shall be made out for the day of delivery or, respectively, when the goods are available.
7.2 As a matter of principle payment shall be due payable on delivery. We shall reserve the right to delivery against cash in advance or cash on delivery. Discounts shall only be allowed if the account of the ordering party is settled. Discountable shall be the value of the goods excluding transport and other additional costs. Payments will always be used to settle the longest outstanding items including accumulated default interest and expenses. Cheques will not be accepted in lieu of performance but only on account of performance. In case of payment default the ordering party is obliged to pay an interest of 8% above the respective regulatory interest. In case of payment default or knowledge of a worsening of the financial situation of the ordering party, in particular moratorium or insolvency proceedings we shall also be entitled to enforce immediately all claims not yet due from the business transaction. Only undisputed claims or claims determined as indefeasible entitle the ordering party to set off or retain payments.
8. Lack of conformity
8.1 In case of lack of conformity shall apply the following regulations: All rights of the ordering party in case of lack of conformity shall expire within 24 months after delivery. On our choice we will eliminate any lack of conformity with repair or with replacement of the faulty goods. A lack of conformity shall only be seen as essential break of contract according to CISG if the merchantability would be affected. The ordering party is not entitled to self repair or to replace equivalent goods. The ordering party is only entitled to withdraw the contract in case of an essential defect which abrogates the use of product.
8.2 Overt defects must be reported within 6 workdays after delivery otherwise we are freed from any liability with respect to lack of conformity.
8.3 In the case of non-adherence to our operating or installation instructions, changes to the products, exchange of parts or use of materials not complying with the original specifications all rights with respect to lack of conformity shall cease. The regulations with respect to lack of conformity do not apply to wear and tear parts.
8.4 In case of transport damage the ordering party is obliged to ensure the finding of facts and to preserve the relevant proofs. Transport damages must be notified to the carrier immediately in writing. The ordering party has to inform us.
8.5 In case of lack of conformity invoices, delivery notes and list of contents need to be attached in duplicate to the returned goods. These documents shall contain: the order number, the quantity and units of quantity, the gross, net and charged weight, the article description with our article number and the remaining items still to be delivered.
9.1 If substantial contractual obligations were violated our liability is limited up to the foreseeable damages expect the case of gross negligence or intention and damages result from bodily injury or death. In case of breach of subordinate contractual obligations our liability is excluded expect for damages result from bodily injury or death.
9.2 If the ordering party does not observe our technical advice or instruction and this may result the elimination of the intended use, we are free from any claims with respect to a lack of conformity.
9.3 In case of unjustified withdrawal from the contract we are entitled to claim 10 % of the selling price as lump sum damage for costs and lost of profit. The ordering party is free to proof a less damage.
10. Repair and maintenance orders and further services
10.1 Fore repair and maintenance orders and further services shall additional apply: As the time needed for error detection is working time, the ordering party is charged for the effort involved if an order cannot be carried out because of: the objected error did not occur during check-up, the replacement part needed can no longer be supplied, the ordering party was not present at the agreed date due to his own fault, the order was withdrawn during its execution, the conditions for receiving the item are objectionable.
10.2 If an ordering party requests a preliminary estimate of costs and afterwards the repair service is not carried out on the ordering party’s demand, the item examined does not need to be put back into its original state, where this is not justifiable from a technical and economic point of view.
10.3 For repair and maintenance orders the period of warranty is 24 months.
10.4 Measures of maintenance, repair or care maintain the ready-to-operate status. We do not, however, guarantee undisturbed operation of the system.
10.5 Repairs carried out through our field staff could only be partial operate due to the lack of appropriate test equipment. If the ordering party insists on the execution of the repair, we will only take responsibility for the properly execution of the same insofar and properly execution is possible under the conditions in field.
10.6 If repair work is carried out on our premises, the item is handed over on presentation of the order confirmation or the pickup slip. If repaired items are not picked up within four weeks of the pick-up request, we can charge a suitable storage fee after the expiration of the deadline.
10.7 We have got a lien on accounts outstanding from the contract for those items repaired by us for the ordering party. If those items are not picked up within three months after the pickup request, there is no obligation for further storage of the item, and thus no obligation for warranty in the case of slight negligence or loss. One month before expiration of the deadline, the ordering party has to be send a warning that the item will be sold. We are entitled to sell the repair item after the expiration of this deadline.
11. Disposal of used electronic equipment
We assume responsibility for the orderly disposal in Germany of delivered products as of the end of their use. The customer informs us in writing of the end of the use of the equipment and then delivers it at his expense in a complete state to the site named by us. We will inform him about the site once he reports the end of the use of the equipment. The customer must contractually oblige third parties to whom he has forwarded delivered equipment to proceed in the same manner after the use of the delivered products has ended and to subject any further persons to whom they may forward it to a corresponding obligation. If the customer ignores this contractual obligation, he will be obliged to resume possession of the delivered equipment when the use of the delivered products has ended and to dispose of them as legally prescribed at his own expense. The right to buyout / exemption does not lapse until 2 years after they are finally withdrawn from use. The two-year period of the suspension of running of time takes effect at its earliest when a written notice of the product’s redundancy reaches us from the orderer. Disposal in countries other than the Federal Republic of Germany is the sole responsibility of the importer into the country in question, who must assume all expenses and obligations arising from the respective regulations in force in that country.
12. Commercial trade mark rights and copyrights
12.1 We reserve the distribution rights, proprietary rights and copyrights for pictures, images, samples, prototypes, models, drafts, calculations, descriptions and comparable documents. Before their disclosure to third parties, the ordering party needs to have our explicit written agreement.
12.2 The ordering party will not copy our products, initiate the production of plagiarism or distribute them otherwise we are entitled to claim a penalty in the sum of 100 % of the relevant selling price. Our right to claim damages according to the relevant legal regulations will be unaffected.
The contractual parties commit themselves to keep all information about their contract partner within the frame of this contractual relationship secret for an unlimited period of time. Apart from the operational organisational structure and procedures, this applies especially to all information which are considered confidential or which are recognisably confidential issues within the company or business. Forwarding to third parties or any other way of disclosure requires our written consent.
14. Partial invalidity, place of performance, place of jurisdiction
14.1 If any provision should be or become invalid, the remaining provisions stay valid.
14.2 For all disputes arising from this contractual relationship, Hanover shall be the place of performance and exclusive place of jurisdiction.
14.3 German law is applicable exclusively including CISG.